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January 10, 2023

What the Fifth Circuit’s Striking of Bump Stock Rule Portends for ATF-Generated Rules


By Larry Keane

An appeals court ruling that struck the Trump-era rule banning bump stocks could have a much wider-reaching impact than just the plastic accessory.

The U.S. Court of Appeals for the Fifth Circuit overwhelmingly ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) overstepped its authority when it published a Final Rule that classified bump stocks as “machineguns.” The Trump-era ban was in reaction to the heinous crimes by a depraved murderer in Las Vegas in 2017. The murderer used bump stocks in the commission of his crimes.

“A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of “machinegun” set forth in the Gun Control Act and National Firearms Act,” the majority opinion states.

That’s not the most important part of the decision. The teeth of the decision has more to do with process – something most Americans learned in their fifth grade civics lessons.

Separation of Powers

Simply put, the federal government operates on a principle of Separation of Powers. Congress, the Legislative Branch, writes the laws. The White House, the Executive Branch, enforces the laws and the courts, the Judicial Branch, decides if laws are Constitutional.

“The Government’s regulation violates these principles. As an initial matter, it purports to allow ATF – rather than Congress – to set forth the scope of criminal prohibitions. Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks at issue here,” the opinion states. “Nor can we say that the statutory definition unambiguously supports the Government’s interpretation. As noted above, we conclude that it unambiguously does not. But even if we are wrong, the statute is at least ambiguous in this regard. And if the statute is ambiguous, Congress must cure that ambiguity, not the federal courts.”

Put simply, Congress set the definition of “machineguns” under the 1934 National Firearms Act and the 1968 Gun Control Act. Only Congress has the authority to modify that definition. Congress alone – the direct representatives of “We the People” – has authority to draft laws and decide what is legal and illegal. The Executive Branch, in this case the ATF as an agent of the Executive Branch, is charged with executing the law. The courts are charged with arbitrating what is law under the Constitution and ensuring that there is a separation of powers.

The Fifth Circuit found that in this case, the Executive Branch got it wrong. The ATF cannot redefine “machineguns” on their own. That authority rests with Congress. The ATF can only enforce what Congress agrees upon as legislation and the President of the United States signs into law. An agency within the Executive Branch doesn’t have the Constitutional authority to draft rules that act with the force of law on their own. That’s executive fiat and it’s unconstitutional.

The Effect

From here, it gets complicated. The ATF agreed for more than a decade that bump stocks were not “machineguns” but an accessory. That changed, albeit with intense public pressure and threats of legislation from Congress. This was the most recent challenge, but it wasn’t the only one to challenge the legality of the bump stock rule.

Previous challenges upheld the rule, including decisions by the U.S. Courts of Appeal for the Sixth Circuit, Tenth Circuit and District of Columbia Circuit. The split among the circuit courts on this question may lead to the U.S. Supreme Court stepping in to decide the issue.

The Fifth Circuit’s decision, however, may have far more reaching implications to what is known as the “administrative state” – where government agencies, not Congress, make laws through regulations and rules.

This ruling could become a harbinger for two more rules finalized by the ATF. The ATF published the Frame & Receiver Final Rule that defined Privately Made Firearms (PMFs) that are sold in a complete kit, or are “readily convertible,” as firearms and regulated as such. That was a departure from previous definitions, just like the decision by the ATF to depart from previous definitions and regulate an accessory like the bump stock as a “machinegun.” In essence, the ATF expanded the definition of a firearm, which the Fifth Circuit said is beyond its authority.

The ATF is also expected to publish a Final Rule based on the Stabilizing Brace Proposed Rule. That could be forthcoming any day. The proposed rule included a four-part test the determine whether a pistol firearm equipped with a pistol brace is defined as a pistol or short-barreled rifle. Short-barreled rifles (SBRs) are regulated under the 1934 National Firearms Act, like “machineguns,” and individuals possessing one must pass additional (and redundant) background checks, submit photos, fingerprints, notify their chief law enforcement officer and pay a $200 tax to obtain a stamp from the ATF. Individuals owning them must also notify the ATF any time that short-barrel rifle is moved from their residence, including submission of travel plans and when the SBR will be returned to the residence to which it is listed. Like with bump stocks, ATF had long ruled that stabilizing pistol braces when affixed to an AR-style pistol did not convert the pistol into a short-barreled rifle or shotgun. The parallels to the bump stock rule are self-evident.

Has ATF again impermissibly redefined firearm definitions and exceeded its authority?   The courts will certainly be asked to decide this important question.

The Fifth Circuit’s ruling is more than a question over a firearm accessory. It gets to the heart of the matter. Can the ATF – working on behalf of a president – rewrite law on their own? The court says it can’t. That is the responsibility, and the role, of Congress.

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